December 22, 2006

Michael B. Nifong, the Durham district attorney, made the decision after learning on Thursday that the woman who complained of rape could not be sure that she had been penetrated with a penis, a distinction that would determine whether what happened to her meets the legal definition of forcible rape in North Carolina, according to court papers filed today.

When she was interviewed on Thursday by an investigator from the district attorney’s office, the woman said she was penetrated from behind while she was bent over with her face toward the floor, but did not know with what, according to a person close to the investigation who would only speak on condition of anonymity.

But kidnapping and sexual assault charges remain.

A week ago, a laboratory director admitted in court that in the wake of an agreement with Mr. Nifong, he had violated his own procedures and withheld results showing that none of the lacrosse players’ DNA had been found on or in the accuser’s body.

“This comes a week after it was shown they intentionally withheld exculpatory evidence on DNA tests,” [defense lawyer Joseph B.] Chesire said. “That begs the question of the extreme coincidence of the timing in which these two things occurred.”

41 comments:

Reminds me of the Tawana Brawley caper from years past! There is something not right going on In Durham! The final chapter in this Southern Classic melodrama will not be pretty.

The players are rich white kids, a poor and abused young black woman, a politically driven Democratic D.A., and a racially active community. As usual, there will be no winners in this, only losers in the game of political correctness run amok.

This prosecution is both an outrage and a farce. It's inconceivable that anyone will be convicted of anything, since the only "evidence" remaining is the continually shifting and contradictory accounts of the alleged victim.

Do you know if it's possible, in any jurisdiction, to bring criminal or civil charges against a prosecutor for prosecutorial misconduct? Assuming it's possible, such charges should obviously not be made lightly, but egregious abuses of the state's prosecuting power (like Nifong's current actions, IMHO) can wreck lives as surely as criminal behavior and should allow for serious consequences.

HI Althouse! I don't know if you have commented on the Duke case, so I won't run off on a spiel on how screwed up this whole mess has been. Suffice to say that I agree with your point and Cheshire's point that the DA's effort to strip any use of DNA at the trial after he, 2 cops, and the owners of a lab were caught red-handed concealing exculpatory evidence but keeping charges he does not rely on DNA to make looks mighty, mighty suspicious.

But I will add a very germane item of news onto the actual case news.

That being that Google has just released their annual zeigist of top hits by search term category. In "controversies/recent news" Google reports that the Duke Rape case was not just the top search done globally, it occupies the 3 top spots out of 5 national and international "controversies/recent news" searches done in 2006.

Which indicates to me that the media may have not realized the enormous level of interest and how many people were hitting the Internet regularly the last 9 months for updates on events and controversy. And it indicates that the impact of the Duke Rape case is broad and deep on the American psyche.

It may have a major effect on:

1. The image of American justice.2. Duke's reputation.3. A more negative perception by a considerable portion of the American public on the abilities of black and feminist activists to render rational judgments.4. National harm to the efforts of North Carolina to promote itself as a modern, progressive state.5. More suspicion about the integrity and ethics of lawyers - especially if people see Nifong escape any civil or criminal consequences and conclude a cabal of powerful lawyers always encircles a fellow member of The Club with Good Ol' Boy protection a mere civilian does not get in the American justice system.6. Far greater suspicion of women claiming rape, particularly black ones.7. More belief that media is automatically biased to support the PC crowd.8. More suspicion that the grand jury system sucks and is simply a secretive rubber stamp tool of the state and a convenient way to dispense with checks and balances in favor of unfettered power of prosecutors to manipulate gullible layman and lie to indict whoever they wish. (The exact opposite of what English Common Law intended grand juries to do before prosecutors figured out how to "game" them.)

MikeinAppalachia said..."Now Nifong can avoid any discussion of the dna evidence before the jury. Not a bad tactical decision?"

I think the defense should be able to bring out this information. For one thing, they'll be able to cross examine the witness with her inconsistent statements, and I think the fact that the charge was dropped after the dna evidence came out is relevant to the credibility of the witness.

If the students are eventually found not guilty, or all charges dropped, I'm wondering if they will be able to sue the university for its conduct, and, all the professors (individually) who signed the inflammatory (and defamatory?) public statements about their supposed crimes before the facts were known.

The case is over.Nifong is toast.Duke has injured its reputation.Some young men are forever scarred. A young woman (or two) was lying, and will not pay for the damage she caused.The Duke professors who jumped in early and demanded conviction suffered no consequences.

The only ones to benefit were parents who got to see up close what the faculty thought of their student body, white and black, and how quickly they were willing to abandon their ethics (and these young men) in search of truthiness. Duke has experienced a 20% decline in early applications.

But since they're all just a buncha white shitbags (the current Washington State University description of Caucasian students), in the end, what's a few young lives trampled on, anyway? At least they weren't minority students, or gay, or immigrants. Because, man, now that would've meant something.

Unfortunately it isn't. As long as the assault and kidnapping charges remain, the students' families will have to keep on paying their lawyers, the students remain subject to the restrictions of their bail bonds, and the students' future prospects are clouded to say the least.

That said, the state's evidence is so compromised it's hard to believe that any competent trial judge wouldn't grant an instructed verdict of acquittal. Nifong must be hoping for some kind of deal in which the students plead to some lesser charge just substantial enough to bar them from filing a malicious prosecution lawsuit.

There's more than just shoutin' to go. Nifong is going to push it as far as he can. I think he decided that he has a lower bar to clear to prove sexual assault than rape. Althouse is right that is goes to the false accuser's credibility but Nifong is apparently willing to let a jury decide on her credibility. He'll continue to play the race and class card until he's stopped.

The thing is that the DNA will STILL come in. Unless they only go with he said - she said, they will include the rape exam, evidence of edema, etc. Then there's the claim of "no sex partners in last week".

Bingo DNA.

Then there's the very, very many stories. The ID.

The families WILL NOT SETTLE. They have testimony that the DA conspired to violate their civil rights, and there is a prima facie case that this conspiracy not only included the DNA tech but also the detective who wrote the "from memory" memo weeks after the fact that was swallowed whole by the NYT (though contradicted by actual contemporaenous notes from other investigators).

While Nifong is protected from a basic malpractice suit in state court, the Federal civil suit for violating civil rights of the defendants strips him of his state level immunity. Durham, the individual investigators/conspirators, Duke professors, and the Duke administration are all facing substantial judgements (though Broadhead is in the process of bailing furiously with today's comments).

1. Ann's "Paper of Record" has been a yellow rag of journalism on this. The reporter who wrote this article is a biased dirtbag. He says for instance that:

A week ago, a laboratory director admitted in court that in the wake of an agreement with Mr. Nifong, he had violated his own procedures and withheld results showing that none of the lacrosse players’ DNA had been found on or in the accuser’s body.

what he doesn't bother to say is that:

a. The alleged victim claimed that she was penetrated and ejaculated in by the 3 rapists, and had only 1 sexual encounter with her boyfriend one week prior. However the DNA Lab found evidence of the DNA of 5 unidentified males on her panties and rectal swabs. This DNA did NOT match the BF or ANY of the LAX Team.

that is a pretty big omission.

2. and OBTW, the DA KNEW that there was no LAX DNA in the alleged victim BEFORE he indicted them. So, if the victim was telling the truth in her statement, there are 5 rapists loose in Durham while the LAX players are on trial.

3. The DA has NEVER spoken to the alleged victim about the incident and apparently the police for the last 8 months never questioned her about the DNA of the 5 guys.

Susan Estrich had a great article on Monday about the DNA results conspiracy. She orginally thought the DA was doing good. not anymore

http://www.foxnews.com/story/0,2933,237084,00.html

the lead of it is wonderful.

This is not the way the system is supposed to operate. Prosecutors are supposed to be out for justice, not blood; committed to the truth, at all costs, not winning, without more.

Prosecutors aren’t just morally obliged but legally required to turn over exculpatory evidence to the defense.

Prosecutors aren’t just one side in a battle.

You can’t come across the smoking gun covered with fingerprints on it – come across it because you have the power of the state to collect all the evidence – and then decide to ignore it because they don’t match the fingerprints of the guy you’re prosecuting for the crime. You certainly can’t file the report from the lab for your eyes only.

You have to tell the defendant that the smoking gun has someone else’s prints on it. He has a right to know that, and the prosecutor has a duty to tell him.

There is a reason that the rules are such. The prosecutor represents the people. The people’s goal is winning, which doesn’t have to mean a perfect conviction rate.

The goal is supposed to be to convict the guy who did it, not frame the guy you’ve got.

How odd to see so many worked up about the injustice of a few lacrosse behavior. It's unfortunate that so many seem aroused by this case but not the hundreds of other overturned prosecutions in this country that don't revolve around a couple of rich white kids.

The next logical step in this case would seem to be "if this can happen to a couple of wealthy prep-school white kids, I wonder what the justice system can do to a couple of poor, black kids without expensive attorney's and the excessive media exposure from Fox News and CNN." But I'm sure on this blog that I'm about the only one willing to take that skip and step.

The next logical step in this case would seem to be "if this can happen to a couple of wealthy prep-school white kids, I wonder what the justice system can do to a couple of poor, black kids without expensive attorney's and the excessive media exposure from Fox News and CNN." But I'm sure on this blog that I'm about the only one willing to take that skip and step.

DING DING DING DING DING!

We have a wiener!!!

Your prize will be your comment deleted by the blithering idiot running this thing...

I know in your delusional state, analytical thinking is a chore, but there is a big difference between your inane blather and dklittl's post. I happen to agree with him at some level, but regardless, he is expressing a rational thought in a civilized fashion, I'm certain that most of the rest of us agree at least about his tone. Your posts on the other hand seem filled with anger.

So black voters and spoiled college professor types back an out-of-control leftist prosecutor, and that means that the criminal justice system is unfair to blacks?

That black voters kept Nifong in power reflects very poorly on them and there's no escaping that. If white voters had overwhelmingly backed Nifong in prosecuting black men obviously innocent of rape charges, I doubt you would be so willing to overlook the role the electorate plays in all this.

I think the defense should be able to bring out this information. For one thing, they'll be able to cross examine the witness with her inconsistent statements, and I think the fact that the charge was dropped after the dna evidence came out is relevant to the credibility of the witness.

Don't be sure about it, though. Who is the judge in this case (and why has he been AWOL this whole time? Or is there no judge yet? We haven't started on crim pro yet)

I think it will come down to whether the judge is as deranged as Nifong. Deranged judges usually find a way to rule the wrong way.

Nifong belongs in prison for the DNA coverup, as does any other prosecutor who violates the law in an attempt to hide exculpatory evidence. It's overdue for the Justice Department to announce a criminal investigation into that slimeball's conduct.

When Nifong's doing time in Club Fed, he'll serve as an excellent example and warning to other prosecutors tempted to do the same thing.

The NYT this morning finally brought itself to print an article that fully describes Nifong's misconduct. In particular, the NYT reveals that on May 18 Nifong signed off on a disclosure statement certifying that he had given the defense any exculpatory evidence of which he had knowledge. Nifong now claims he had forgotten the exculpatory DNA evidence when he signed the statement. It's simply unbelievable that the DA could forget something so basic to his case. A Brady violation of this magnitude will surely be enough to support state bar disciplinary proceedings against Nifong.

Nifong's handling of the case is hard to understand. Surely he must have expected that with all the media attention, he couldn't afford to be this clumsy.

The next logical step in this case would seem to be "if this can happen to a couple of wealthy prep-school white kids, I wonder what the justice system can do to a couple of poor, black kids without expensive attorney's and the excessive media exposure from Fox News and CNN." But I'm sure on this blog that I'm about the only one willing to take that skip and step.

Well then, you would be wrong. My guess is that Nifong thought he could get away with this because the Durham DA's office and police department are accustomed to using these sorts of tactics to secure convictions. If the media, civil rights activists, and Duke's administration and faculty were really interested in stopping out of control DAs from abusing their power in order to secure convictions against poor black defendants then perhaps they should be using this case as a catalyst to bring about change to the system instead of a chance to demagogue for "social justice”; social justice, in this case, meaning revenge.

In line with what Cedarford said, this middle-aged white woman no longer presumes prosecutors are the good guys. In fact, I'm rather embarrassed to realize how much I have always been prejudiced in favor of them. Not that I am chosen regularly for juries.

All of us realize that poor black defendants are at a disadvantage in the justice system. Nifong brings home the fact that we are all vulnerable to a DA with an agenda. Could this be why the case resonates with so many?

And that is what is so sad about this case. There have been 100's of similar cases that have gotten some minor media attention that involved black defendants being railroaded by the justice system, but until most people can see the possibility that someone who might look like their son or daughter steps into those shoes they just can't seem to get upset about it. Out of control DA prosecutions have been going on for ever in this country(To Kill a Mockingbird?), but all we get is blather about "law and order" and "they wouldn't arrest them if they weren't guilty or suspicious" when discussing "others".

I would hope that this would be a teaching moment for people to look outside with a little more perspective, rather than throw statistics at the crime and imprisonment rate when discussing the plight of black and hispanic males in our justice system. But alas, we still have people like hygate that believe that this white DA has some particular bias towards black people instead of being a craven politician only seeking votes from his constituency like every DA in a predominantly white district, or that civil rights groups are some all-powerful organization who like Judith Regan's "Jewish cabal" have some evil and dominating agenda that the poor and disenfranchised white people are powerless to stop.

Good luck with that! One thing most of the MSM and most of the blogosphere definitely have in common:

Never apologize. Ever. Never admit being wrong. And never, never, never let facts get in the way. They are such incovenient things, to paraphrase Churchill. 100% righteous certitude can only be furthered by 100% obstinance.

Knifong started this case in his effort to secure the black vote and thereby enhance his re-election prospects. That done, and it turning out to be a whole lot more than he bargained for, now he doesn't know how to stop it, at least not gracefully. So he will plow onward.

While I agree somewhat with past comments like Christy's that have focused on that fact "that poor black defendants are at a disadvantage in the justice system", I should mention the converse. Wealthier people are able to buy better lawyers but if Nifong had tried to prosecute poor or even wealthy black students with accomplished athletic and academic records, the whole country would be outraged and he would have been forced out of his job.

While wealthier white kids may have a better chance of defending themselves in this type of case, poorer black kids have a better chance of never being charged.

This whole case has been outrage. Either the Duke players have the best pr. reps. and lawyers in the world, or Nifong has completely abused his discretion as a prosecutor for political gain. I suspect it is the latter and not the former. The players, even when likely found innocent, have already had their names completely tarnished and their careers disrupted by awful DA, a lying alleged victim, and a school that bent over backwards not to defend their own students and initially presumed they were guilty.

This comment is right on and is comming from a University of Maryland Professor.

""Spokesman Jason Trumpbour, a 1991 Duke law school graduate who lives in Parkton, Md., seems to have sparked a response from Duke administrators with his rant.

"The administration's silence about Mr. Nifong's continued assault on the civil liberties of Duke students appears to be having an unfortunate, if inevitable, effect," Trumpbour said in the group's statement, citing a 20 percent drop in early admissions applications. "Surely any prospective parent would have to think twice about sending a son or daughter to an institution whose leadership has stood aside as a local prosecutor targets students through procedurally improper actions.""

Wealthier people are able to buy better lawyers but if Nifong had tried to prosecute poor or even wealthy black students with accomplished athletic and academic records, the whole country would be outraged and he would have been forced out of his job.

Where on earth has this ever played out? This is fanciful fiction Nifong will probably lose his job over this, and I don't see what example you can give of a circumstance when a poor black defendant ever had this much from the general public. As many death row cases have been overturned in the past 10 years over prosecutorial misconduct, I doubt you could name a single DA or defendant in those cases. But these rich white kids have you and others treating them as if they as if this is some unique case that nobody else has every had to live through. That is silly and willfully ignorant.

Still, I don't know this world where wealthy, white people are the oppressed and poor, black defendants have this army of lawyers and publicity behind them to make a difference. White people's case du jour will always be OJ, and the ONLY reason that he got off was because of his wealth. If he didn't have that defense poking holes in a terrible prosecution, I don't care if MLK would have raised himself from the dead to march on Orange County, OJ would have gone down. Every statistic or study completely contradicts your notion that poor black defendants have an easier time in our justice system. EVERY SINGLE ONE.

dklittl, you name me another high-profile case, in the past five years in which the DA has ever had this little evidence and where the DA (in violation of legal ethics) already presumed the defendants guilty publicly before even charges were made.

As your comments, "Every statistic or study completely contradicts your notion that poor black defendants have an easier time in our justice system. EVERY SINGLE ONE."

Once again, I never said black defendants have an easier time in the justice system. What I said was that if the defendants were poor and black in a high profile case like this where there was absolutely no evidence and the allgeged victim had a record for lying and constently purgered herself, the charges would have been dropped.

Since charges wouldn't have been made it is difficult or nearly impossible to find statistics on the number of investigations dropped in this scenario. Howevever, there have been numerous allegations against black athletes (collegiate and professional) where charages have been dropped, even though the evidence was considerably more glaring than this.

Do you honestly think if the accused had been black basketball players and honors students, that in the aftermath of this event, 88 Duke faculty members would have taken out a full-page ad called ‘listening’ statement,” in the school newspaper?

Do think Peter Neufeld the co-founder and director of the anti-death penalty group, the innocence project who has consistently used lack of DNA evidene to prove his clients were innocent would have said of this exculpatory evivence, "There’s an old saying that the absence of evidence is not necessarily evidence of absence."

BTW, I never said that Nifong would lose his job over this. I argued though if the situation was in reverse that he would have.

Please read carefully, before blogging and distorting someone's words. In general, please read more as you appear to be very uninformed about many things.

But alas, we still have people like hygate that believe that this white DA has some particular bias towards black people instead of being a craven politician only seeking votes from his constituency like every DA in a predominantly white district, or that civil rights groups are some all-powerful organization who like Judith Regan's "Jewish cabal" have some evil and dominating agenda that the poor and disenfranchised white people are powerless to stop.

Hey, dklittl,

Talk about seeing and hearing what only what you want to see and hear! Your characterizations of my arguments are the exact opposite of what I stated. I find this particularly ironic since in the same posting in which you did so you adopted some of the positions I actually hold as your own. Of course Nifong is railroading these kids for political purposes and yes DAs get away with this sort of thing all over the US. I fail to see how you could arrive at any other conclusion from my statement that:

If the media, civil rights activists, and Duke's administration and faculty were really interested in stopping out of control DAs from abusing their power in order to secure convictions against poor black defendants then perhaps they should be using this case as a catalyst to bring about change to the system

Perhaps if I rephrase my argument you will be able to comprehend it. DAs are going to keep doing this sort of thing (everywhere) until changes are made that prevent it. As you said, this is a teachable moment. However, the media and civil rights organizations (at least as represented by Al Sharpton and Jesse Jackson) are throwing that chance away. In the name of "solidarity" they are throwing their collective clout (the clout that any other organized constituency holds) behind a clearly out of control DA. In my opinion a better strategy would be to use this opportunity to work for structural changes so that DAs cannot get away with this sort of thing any longer. Because they are throwing this chance away poor blacks will continue to be railroaded by out of control DAs. To me this seems to be a bad thing, but apparently you feel that someone holding this opinion must be a bigot.

all charges were dropped against the specific members of the lacrosse team who had been indicted? just like that? There's something not right about this.. So Nifong just became aware that those three white kids were not guilty of the rape?I don't think I'm following i think i missed something in the process..